The trial of the printer was the critical moment for all concerned, the leaders of both sides being as anxious about the outcome as was Peter Zenger himself. Cosby had done everything he could to ensure a verdict in his favor. The defense countered by bringing in the leading attorney of Philadelphia, perhaps of the colonies, Andrew Hamilton. The common people of the city thronged the galleries as the proceedings began.
What happened during that momentous August day is one of the moving, triumphant pages of American history. We can still feel, in reading the text of the trial, the emotional tremor that vibrated in the courtroom at the clash of two powerful forces. We can still follow Andrew Hamilton as he stalks his opponents like an implacable duelist with a rapier, pinking now one and now the other as they venture to challenge him. We can understand the hot befuddlement of Chief Justice Delancey and Attorney General Bradley when they found their prepared defenses useless against a kind of attack they never expected; we can understand their moral disintegration when the verdict went against them, and they had to think what to say when they reported to the governor’s mansion. How must they have felt when the crowd began a delirious demonstration to show its delight that Peter Zenger was a free man? How must they have felt, a few hours later, when they heard that Andrew Hamilton was being treated like a hero by the magistrates of the city?
Governor Cosby had suffered a crushing rebuke. His sword had turned into a boomerang. Having confidently looked for an end to the obnoxious newspaper, he found it justified in the most complete and unanswerable way—by the judgment of a group of men typical of those he governed. No longer was there any hope of silencing his critics, or of arguing with any kind of plausibility that they were guilty of seditious libel. His defense was shattered on both fronts, for NewYork was sure to have a moral for London. The trial he forced with such demanding arrogance undermined him, and a modest German printer became the symbol of his catastrophe—something the great Lewis Morris had been unable to engineer in face-to-face conferences with the British authorities.
The verdict seems to have broken Cosby’s will. Already a sick man, suffering from pneumonia, he made no attempt to rouse himself for a renewal of the battle that had gone on from the beginning of his administration. He had never collected the salary from Van Dam, he had lost the critical elections, Alexander was still unpunished, Peter Zenger was beyond his reach, and a free press was definitely established in New York. Cosby was defeated, and he knew it.
He did strike one last blow at the old enemy who had started the trouble: he suspended Rip Van Dam from the Council. Characteristically, the obstinate Dutchman refused to acknowledge the suspension, and challenged George Clarke, the next ranking member of the Council (and a Cosby man), for the executive power in New York.
William Cosby was, appropriately enough, the prime mover in the quarrel, but this time he was not personally involved, for he died—a discredited man, but still Governor of New York—on March 10, 1736.
The lawyer who won the acquittal for Peter Zenger was, like his friend James Alexander, a Scot. The year of Andrew Hamilton’s birth is a matter of some debate, an old story holding that he was in his eighties when he appeared in the New York courtroom, while later evidence makes him around 65 at that time. His life holds other mysteries. For one thing,we do not know why he left Scotland. It has been said that he was forced to flee after fighting a duel; again, the motive has been called political, which prompts the surmise that he was implicated in the 1715 Jacobite rising—a pleasing theory in that it allows us to imagine him and Alexander together on the same Scottish battlefield with no presentiment that their place in history lay twenty years ahead and three thousand miles away. We have too little evidence about this phase of Hamilton’s life to speak authoritatively about it.
There is even some doubt that he belonged to the Hamilton clan. When he arrived in America he went by the name of Trent. However, trouble back home would account for the pseudonym, and before long he reverted to Hamilton. Rivaling Alexander in the versatility of his talents, he rose to power as soon as opportunity beckoned. He married an affluent widow, founded a great landed estate in Maryland (“Henberry,” near Chestertown), went back to England to study law as a member of Gray’s Inn, and then entered Colonial politics to begin an illustrious career crowned by his appointment to the Council and his election to the Assembly of Pennsylvania.
From then on his name appears prominently in Pennsylvania business. He handled legal cases for the Penn family and helped draw up addresses to the crown. He gained a reputation for opposing arbitrary acts by the Governor, especially with reference to the courts, which put him right at home when he entered the Zenger trial.
Hamilton’s commanding personality had no little share in winning an acquittal for Peter Zenger. Knowing that Chief Justice Delancey would instruct the jury to leave the verdict to the court, Hamilton had to maneuver them in such a way as to make them see that they ought to ignore the instruction; and that required not only basic legal argumentation, an assured manipulation of both fact and logic, but also his owndomination of the proceedings. His success was due to his courtroom presence added to his maintenance of the initiative from beginning to end. He could not afford to falter, nor did he.
By comparison, James Delancey looked like a tyro, which indeed he was—a young man, just 32, who moreover had gained his office under dubious circumstances, facing one whom he knew by reputation to betheold master of their common profession. Reading between the lines of the trial we are compelled to infer that Delancey lost control partly because of his own inadequacy, and partly because his hostility toward Hamilton was tempered by a deferential respect due to superior knowledge, experience, ability, and prestige. It is just as easy to see how the spectacle of the Hamilton-Delancey duel swayed the jury, prompting them to act on the advice of the defense attorney rather than on the instruction of the chief justice.
Aside from this historic victory, Hamilton is memorable as the architect of Independence Hall in Philadelphia. When the Pennsylvania Assembly decided that it needed a new building, Hamilton was named as one of the Commission to look into the problem. He submitted a plan for site and structure, had it approved by the legislators, and then supervised the work. The result was the State House in which the Assembly met for the first time in 1736. It still stands, one of the most hallowed buildings in America; now it is known from its place in the Revolution as Independence Hall.
The Zenger verdict and Independence Hall—how many men in the history of America have two comparable monuments to their memory? Andrew Hamilton had done well the two major tasks entrusted to him when he died on August 4, 1741, exactly six years to the day after the trial of Peter Zenger.
The trial of John Peter Zenger was one of the spectacular events of American history, involving as it did powerful personalities, factional intrigue, a newspaper war, and a splendid courtroom scene in which low chicanery mingled with high rhetoric. It boasted a shining hero and a glowering villain. It passed through the dramatic sequence of conflict, climax, and denouement. It had a happy ending.
Offhand you might think that the Zenger case could be nothing more than that—a scintillating drama with a story-book finish, a tale worth telling without sequel or epilogue. Yet it was one of the most significant things that ever happened on this side of the Atlantic. It was a center from which forces—legal, political, social, constitutional—radiated throughout America, and from one generation to another down to our own time.
The historian and the dramatist may rejoice at the event as such, but the real importance of that trial of August 4, 1735, lies in what came out of it. When Peter Zenger returned to his home instead of to his prison cell, that very fact made him forever a focal point in the development and philosophy of American democracy. The implications for the future were more fundamental, varied, and far-reaching than any of the men concerned could have dreamed. It is the implications that lift the Zenger case out of the class of ordinary political prosecutions and give it a transcendent meaning.
The trial was the first, and the most important, step toward freedom of the press in America. Peter Zenger was accused of seditious libel simply because his press had turned out, and was still turning out as he stood in the dock, a newspaper with the impudence to criticize the Governor and his administration. TheNew York Weekly Journalwas an astonishing spectacle in the Colonies—a periodical that preached freedom of the press as a fundamental right, and practiced its doctrine by reporting the news as it saw fit.
Other newspapers might clear their material with the authorities, or at least hedge in saying anything that could cause unpleasant repercussions. TheJournaldisplayed no such self-restraint. It dwelt on the Governor’s misdemeanors, alleged his incompetence, laughed at his mistakes, spotlighted his attempts to cover up his shady dealings, and more than suggested that he should be removed from office.
TheJournalovertly and even clamorously threw off subservience to the Colonial government. It followed the lead of the British papers that had already begun the battle for a free press, and carried the fight into the American arena. Many evil and stupid men had been sent to the New World as representatives of the crown, but until the Zenger era they were able to keep the press sufficiently in line. It was the misfortune of Colonel William Cosby, one of the worst and stupidest, to collide with a newspaper that would not give way.
In charging Peter Zenger with seditious libel Cosby was acting in accordance with an old habit of the official mind. Until a few years previously, Colonial governors had been specifically commissioned to censor the press, and the tradition still held that journalists had no right to print anything of which the local executive disapproved. His discretion was the criterion, just as the king’s was in Britain. He could setdown as “libelous” any report that caused him any uneasiness, and impugn it as tending to excite sedition among the governed.
Thus the question of truth was beside the point when printers, publishers, editors, and writers were being prosecuted. Indeed, veracity might only aggravate the charge, for obviously unrest is most likely to follow from a story about stupidity or criminality in government if the news happens to be true. This thought gave rise to a whole theory epitomized in the legal tag, “The greater the truth, the greater the libel.” The journalist was caught coming and going—guilty if his story was false, even more guilty if it was true.
Such a theory of seditious libel may sound paradoxical at first, but in fact it had behind it a strong logic based on history. When the British monarchy emerged as absolute during the reign of the Tudors, the relation of king and people was that of master and servants, a relation accepted by the nation almost without demur. Therefore, criticism of the king was illegitimate andipso factocriminal, and the truth of such criticism was at best inconsequential, at worst an exacerbation threatening to cause a breach of the peace. Hence: “The greater the truth, the greater the libel.”
But the law could not stop there, for British politics went through a profound revolution during which Parliament wrested control of the government from the king, who slipped steadily downward into the role of servant to, rather than master of, his subjects. Parallel with this development went a progressive rise in the power of the popular will, one result of which was that criticism of king, ministry, and Parliament became transmuted into an integral part of the British system. Now the distinction was no longer between criticism and no criticism, but between valid criticism and invalid criticism; and one acid test was exactly the question of truthin the charges made. By the end of the eighteenth century the change was virtually complete.
The law lagged a little in rewriting its rules. At the time of the Zenger trial (1735) the situation was ambiguous, a fact that comes out clearly in the pleading. Peter Zenger’s acquittal helped to resolve the ambiguity along the lines of greater freedom.
Governor Cosby stood for the Tudor principle. He might have coined the phrase, “The greater the truth, the greater the libel,” so well did it suit him. His regime would not bear scrutiny, for he riddled it with dubious, unethical, and illegal acts of various kinds—ignoring the rules laid down in his instructions from the Board of Trade in London, interfering with the elections and with the courts, boldly appropriating money and land, insulting the people and the Assembly of the Province—and he did not want such things to be aired, least of all in the columns of a weekly that allowed him no respite as it appeared every Monday with its reports about him and his circle of confederates. He failed in every other attempt to silence theJournal, and then brought the printer into a court of law to answer the charge of seditious libel.
So far everything was in order. But as soon as the trial got under way things began to go wrong. Andrew Hamilton had come from Philadelphia to speak for the defense; and he, with all the eloquence for which he was famous, propounded the novel theory (novel for America, at least) that freedom of the press is a basic need of society. He insisted that the people have a right to know what their government is doing. He noted that they should be able to complain when they have a grievance against the government, and that a sure, easy, and speedy method of doing this is for them to make their opinions known in the newspapers. He pointed out theconverse, that nothing of this is possible as long as the censor can blue-pencil what he chooses, since the censor is, by definition, the administration’s man, and does its bidding.
Above all, he drew a sharp line between truth and falsity in reporting the news. Admitting that no one has a right to lie in print any more than in speech, he successfully inserted into the minds of the jurors the notion that an editor should be allowed to plead the authenticity of a story as his justification for publishing it. He got them to agree that the word “false” should be operative and indispensable in the kind of seditious libel of which Peter Zenger stood accused.
Even Hamilton could not see how titanic an issue was joined. He was primarily interested in the problem at hand—to get his client acquitted—but the fact is that in speaking for his own time he was speaking for all time. He would have been a prophet as well as a philosopher if he had seen fully the parting of the ways at which he stood, with the old censorship extending backward into the past, and the new freedom pointing toward the future. It was merit enough that he saw farther than any other man of his period, and that he stated the argument for the emerging principle better than anyone else.
The full import of his victory in court is not yet exhausted, and very likely never will be. As time passes we understand more exactly just how great a blow it would have been if Governor Cosby had been able to kill the magnificent pioneering experiment in independent journalism that theJournalwas. We appreciate better than our ancestors the overwhelming significance of the trial of Peter Zenger, that for the first time an American practitioner of unfettered news coverage had won a complete and avowed vindication through the orderly official process of a trial by jury.
Ever since, newsmen have looked back on the Zenger caseas the origin of their most primordial right. If that right was not promptly conquered everywhere in the Colonies, Peter Zenger had lit the train for a whole series of delayed reactions. The trial touched off discussions about the meaning of libel, showed that existing definitions were defective rather than axiomatic, compelled the authorities to take more account of public opinion before launching lawsuits against their opponents of politics and journalism, and thereby saved other editors and printers from following the old path that led nowhere except to prison.
James Alexander’sBrief Narrative of the Case and Tryal of John Peter Zengerwas widely reprinted after Zenger himself had turned out the first edition, and the text became a classical precedent to which anyone faced with censorship could point. Americans still point to it when freedom of the press is under discussion.
Present-day newsmen have a more professional reason for being grateful to this Colonial printer. Throughout his imprisonment and trial he maintained a steadfast silence about the identity of the men who wrote the contents of the newspaper that he ran through his press; and he thereby gave an enormous impetus to the thesis that a journalist has a right to keep secret the sources of his information. Other printers before Zenger had refused to divulge the names of their contributors, and some achieved the crown of the semimartyr in consequence, but none had ever been given the unanswerable backing of the courts.
Always the formal conditions of Zenger’s acquittal must be borne in mind, for his triumph was not just a personal thing, or the wresting of a momentary privilege from an indolent or interested official. It was a legal precedent.
The Zenger case necessarily reflected on American politics.The acquittal of the Defendant involved the condemnation of the Plaintiff, which meant that Governor Cosby’s administration was found guilty of the things with which theJournalcharged it. One more stumbling block was thrown in the path of tyranny, one more support removed from dishonesty in high places.
Cosby had hand-picked his judge to insure control of the court, but never would this kind of illegality be repeated with the same lighthearted contempt for criticism. Never again would any Colonial governor try quite so recklessly and arrogantly to rig elections or to seize land or to play the politician with his Council in order to create within it a faction that would rubber-stamp his whims. These misdemeanors had been condemned (by implication) in a cold legal decision—and the Colonies would not forget.
The behavior of courts handling libel cases changed. When the New York jury came in with a verdict of “Not guilty,” it did something that was rather startling for the 1730’s. According to the traditional theory of law, the business of jurors was to determine the fact of publication, and to leave the verdict to the court. In this case, the jury should have confined itself to deciding by whom theJournalhad been printed and at whom the contents were aimed, after which its function would have been fulfilled. The setup was ideal for Governor Cosby since he had his henchman on the bench, Chief Justice James Delancey, all prepared to render a verdict of “Guilty” as soon as the jury had agreed on the undeniable (and undenied) fact that Peter Zenger was actually printer of the newspaper.
Andrew Hamilton scrambled the neat pattern that Cosby had laid out. He made his appeal directly to the jury, ostentatiously bypassing the judges on the bench, presenting past instances in which jurors had taken upon themselves theresponsibility of deciding the law—that is, of giving the verdict, instead of merely identifying the printer of the supposedly libelous material. He argued that juries are of little use if they do not perform this function, since there is no reason for jurors to participate in any trial except that as local citizens they are supposed to be familiar with the facts pertinent to the case. He asked the Zenger jurors simply to declare what they knew to be the truth, that “Zenger’s paper” had correctly described the New York administration under which they all lived and suffered. In other words, he appealed to the twelve men in the jury box to take the decision away from a governor-controlled court.
Hamilton got his wish. The jury followed his advice, ignored a warning from Chief Justice Delancey that the verdict was none of their business and should be left to the court, and brought in a finding of “Not guilty.” The immediate effect was the acquittal of Peter Zenger. But the long-range effect was a change in the mutual relations of judges and juries. Just as the principle, “The greater the truth, the greater the libel,” became more and more implausible as time passed, so did the notion that the proper function of the jury is to determine the “fact,” that of judges to hand down the “law.” Jurors, like newsmen, were voted a charter of independence at the same time that Peter Zenger was set free.
The Zenger case assisted the rise of public opinion as a factor in American life. The feeling of the inhabitants was never, of course, completely inconsequential, and more than one governor had found himself with a rebellion on his hands when he made himself too obnoxious, but in Peter Zenger’s time the people were becoming increasingly restive and impatient under maladministration. He made the attitude vocal as it never had been before. Dissidents had habituallyissued critical pamphlets about things they objected to. TheNew York Weekly Journalchanged criticism from intermittent to permanent. The newspaper appeared regularly every week, always crammed with information about the officials of New York, and drawing its material from dozens of plain citizens as well as from a steady “staff” of anti-Cosbyites. Because of theJournal’s popularity, a whole section of the people received a constant diet of critical journalism that showed them how influential their approval or disapproval was.
Before long popular sentiment constituted a real power in the Colonies. Governors became more reluctant to coerce opposition. Grand juries were emboldened to make freer decisions when called on to indict editors. A witness to the increased importance of the common man is Cadwallader Colden. He became lieutenant-governor of New York, and as such a defender of the crown’s prerogative; but he was a veteran of the Zenger controversy, and in the midst of an even greater crisis (that following the Stamp Act) he gave it as his considered opinion that to prosecute newspapermen for libel would be very dangerous in view of the feeling among the people. Journalists became bolder in their criticism, more sure of themselves when they had public opinion with them.
TheNew York Weekly Journalset the classic example of marshaling the citizenry in serried ranks to support one point of view in politics, nor does it, in this, have to take a back seat to any other news organ in the history of American journalism. Sam Adams’Boston Gazettebut followed in the path already marked out by “Zenger’s paper,” which was then, and still remains, a model of the art of diverting popular sympathy from individuals and parties by making them look ridiculous or criminal or both.
The participation of ordinary men and women in political discussions, debates, and quarrels caused a rise toward the level of true democracy. TheJournalproved the close connection between political freedom and freedom of the press half a century before Jefferson laid down his famous axiom on the subject, and a century before de Tocqueville perceived that modern democracy cannot exist without the public forum of the newspapers. By creating political journalism in the true sense, theJournaldid as much, perhaps, as any other single agent to create the American way of life. If we find censorship stifling today, we owe that phenomenon of our moral physiology in no small degree to the battle that was fought and won by Peter Zenger.
On the constitutional side, the Zenger case helped snap the leading strings that bound the American Colonies to the mother country.
It made resistance to governors more respectable. Governor Cosby’s defeat, like Peter Zenger’s vindication, was a legal precedent. At no time was there any question of violence or armed insurrection (although Cosby affected to believe the contrary in his letters to London). The thing was fought out strictly through the judicial machinery of the Province, with each side struggling to win over judges and juries. Cosby lost because he could not control the one jury at the critical moment. The decision was unassailable in any legitimate fashion, and Cosby wasipso factolegitimately discredited.
The outcome touched off reactions throughout the other Colonies. The published account of the trial was hailed as a notable addition to the documentation of freedom—something to be referred to whenever the liberties of the subject were endangered. No longer could anyone claim with anykind of justice that resistance to crown officials was always wrong, that it had no real basis in American legal development or political experience: theBrief Narrative of the Case and Tryal of John Peter Zengerwas always there to give the lie to the proposition. When resistance became really outspoken in the time of Adams and Otis and Hancock, its leaders could thank Peter Zenger as one of their forerunners who helped generate the mental atmosphere in which revolutionary ideas could grow, thrive, and spread.
Resistance to governors led directly to resistance to the crown. Until the time of the Zenger case, it had been conventional to solve American problems by British experience, to look to the common tradition for both principles and their correct application. After 1735 that procedure was no longer to be accepted without quibble. Speaking to the jury, Andrew Hamilton based his argument on the common sense notion that British law, as such, could not always apply to America, because conditions in the New World were in many respects unique, that in such cases our law would have to develop its own rules and regulations.
Hamilton referred only to legal development since he was defending a client in a court of law; but from his premise a political conclusion could be drawn, namely, that government might not necessarily be directly transferable either: if the Hanoverian monarchy, however successful in Britain, could not rule satisfactorily the Colonial democracy that was developing on this side of the Atlantic, then perhaps something else should be put in its place. In Hamilton’s time the crown itself was not yet suspect; it remained inviolate, thesanctum sanctorumof allegiance and veneration, when its representatives over here were attacked with unmitigated animosity. Hamilton himself remarked that the king differed from his officials in kind rather than merely in degree.
Once, however, the authority of the king had been challenged, then Hamilton’s appeal from British precedent to Colonial experience became very much to the point. His efforts in behalf of liberty for New York helped pave the way for liberty for America, the rebels of the 1770’s drawing from his legal premise the political conclusion that lay implicit in it. He enabled them to argue cogently that independence was not a scandalous novelty but a natural issue of the American situation in the face of an authority three thousand miles away.
The men of the Revolution were well aware of their indebtedness. Gouverneur Morris spoke for them all when he delivered his famous judgment that “The trial of Zenger in 1735 was the morning star of that liberty which subsequently revolutionized America.”
Britain herself did not go unaffected by what had happened in the City Hall of her New York Colony. As far as it concerned freedom of the press, the Zenger case fell into place in a transition that had long been developing in the classical home of libertarian ideas. The account of the trial was reprinted there, and cited as an ideal of what British journalists were striving for. In 1738 a London correspondent wrote to Benjamin Franklin’sPennsylvania Gazetteto say that Andrew Hamilton’s address to the jury was causing something of a furor in the coffeehouses where the gentry and the intelligentsia met, as well as among the professional lawyers. The correspondent quoted one leader of the British bar as saying of Hamilton’s argument, “If it is not law, it is better than law, it ought to be law, and will always be law wherever justice prevails.”
The two great principles—that truth may be used as a defense in libel cases, and that the jury has a right to decideon both the “fact” and the “law”—did eventually become legal for both Britain and America. The process of formal acceptance took time, and the mother country divided with her former Colonies the primacy of writing them into the lawbooks. Britain gave the jury its proper function as early as 1792, with the Fox Libel Act, whereas America had to wait for the Sedition Act of 1798; but we admitted that veracity might be alleged in the Sedition Act, a right which the British were without until Lord Campbell’s Act was passed in 1843.
The struggle for the two principles on both sides of the Atlantic is a monument to the sagacity of Andrew Hamilton. No one could have won their vindication at a single stroke against the inertia of old tradition and habitual usage. But he defended them at the critical moment when change had become a real possibility, and did it so powerfully as to give them a forward drive that could not be stopped. Their triumph was therefore his—at the remove of half a century and more.
The current of ideas set in motion by the Zenger case continued throughout the nineteenth century, and became an integral part of journalism as we know it. Libel suits did not diminish; on the contrary, they increased; but they did not follow the lines of the Zenger prosecution. They were mainly suits against “false, scandalous, and malicious” statements in the newspapers, the growing number of such cases reflecting the widening latitude within which editors worked. The word “false” retained the significance that Andrew Hamilton had attributed to it back in 1735. If the threat of the libel action still hung over the heads of journalists (as it rightly did and does), it was not the “libel” that Chief Justice James Delancey had tried to pin on Peter Zenger.
The name of the Colonial printer did not, however, gleam as brightly as it should have in the age of Bennett and Greeley and Raymond and Dana. He was, if not forgotten, at least overlooked or ignored to a surprising extent. Naturally he found a place in the volumes on his art—in Isaiah Thomas’History of Printing in America, a masterpiece that appeared in 1810, and in Charles Hildeburn’sSketches of Printers and Printing in Colonial New Yorkat the other end of the century (1895). The astonishing thing is that no major work on the Zenger case was written for more than a hundred and fifty years after it.
The twentieth century redressed the balance with Livingston Rutherfurd’sJohn Peter Zenger, His Press, His Trial and a Bibliography of Zenger Imprints(1904), which, with all its defects, remains the only attempt to treat Peter Zenger and his newspaper extensively and completely. With its full reprint of the trial, it is the standard work on the subject. The past fifty years have produced a mass of periodical essays, learned monographs, and printed documents on the Zenger case; and, of course, we can interpret the event more intelligently through our added experience of how the press fares under tyrannies so abominable that they leave Governor Cosby looking like a rather mild specimen of the juvenile delinquent.
The memory of Peter Zenger was given a fillip in 1933, the year of the bicentennial of the founding of theNew York Weekly Journal. In October a distinguished group of newsmen gathered at St. Paul’s Church in Eastchester to commemorate the first issue of “Zenger’s paper”—that being the place where the Popular party won the election (in spite of Cosby’s attempt to rig it) that was the feature story on November 5, 1733. The New York Public Library participated in the celebrations of 1933 by giving an exhibition ofits Zenger material. In January of 1934 Senator Borah read into theCongressional Recordthe words from a tablet which the New York Bar Association set up to the memory of Andrew Hamilton: the inscription mentions how Hamilton came from Philadelphia to defend Peter Zenger:
and thus early in the history of the colony of New York, in connection with the events out of which the accusation arose, contributed to the foundation and the subsequent establishment in the American Colonies and the United States of America of the now cherished principles of constitutional liberty, freedom of the press, independence of the judiciary, independence of the bar, freedom of elections and independence of the jury.
and thus early in the history of the colony of New York, in connection with the events out of which the accusation arose, contributed to the foundation and the subsequent establishment in the American Colonies and the United States of America of the now cherished principles of constitutional liberty, freedom of the press, independence of the judiciary, independence of the bar, freedom of elections and independence of the jury.
These words Senator Borah considered of such moment to the American people and their government that they ought to be permanently enshrined in the proceedings of the national legislature—and so they are.
Fittingly enough, New York City paid the final tribute to one of her great sons. In 1953 was established the John Peter Zenger Memorial Room. Located in the old Sub-Treasury Building, which stands on the site of the City Hall in which Zenger was first imprisoned and then tried, the Memorial Room depicts various scenes from the life and career of the German immigrant who looms so large in the history of our journalism and of our free institutions.
This tribute does not take Peter Zenger out of living history to place him in a museum. Rather does it emphasize the truth that his memory will never die as long as American democracy survives. Interest in his trial should never flag if only because freedom of the press is not something that can be taken for granted. In our time the Communist and Fascist challenges have compelled us to go back to our national origins to justify our way of life. That way of lifestands or falls with the right of journalists to criticize the government. We cannot afford to ignore or slur over the printer and his colleagues who first insisted on independence in publishing the news, put their principle into practice, produced a great newspaper that magnificently vindicated them, defended their newspaper in the teeth of official condemnation and judicial indictment, and were so obviously in the right that a jury of their fellow citizens upheld them in spite of a hostile court. Peter Zenger was never more of a portent and a precedent than he is today.
This edition of the trial is, like all others, based onA Brief Narrative of the Case and Tryal of John Peter Zenger, Printer of the New York Weekly Journal, which was edited by James Alexander and printed by the Zenger press in 1736.
Alexander’s is the only authentic version, for he was the sole person close to the affair who undertook to prepare a written text. He was in this, as in so many other ways, the formal apologist for his side. A rival edition would have been logical, and could easily have been produced by the men of the prosecution, but they never saw fit to attempt their own vindication.
Indeed, Attorney General Bradley declined even to participate in publication, withholding his notes and his brief when the Zenger camp asked to see them, refusing any kind of advice, comment, correction, or even objection; obviously because, staggered and humiliated by the acquittal, he was in no mood to help embalm his courtroom defeat in print. It is a pity that he allowed his case to go by default. He could not, of course, have changed the pleading as we find it set down, except possibly for minor points of emphasis or phraseology, but he might have made a more respectable showing than he does in the bare synopses to which theBrief Narrativeis reduced from time to time. True, he might have appeared in an even worse light; perhaps he was afraid that that was exactly what his opponents had in mind. Nevertheless, at the very least he would have allowed thepublic and posterity to view what happened from his angle of vision. He deliberately chose not to do so.
The defense had no inhibitions about publishing a full account of the trial. The cheering and shouting had scarcely died away before Alexander was at work copying out the arguments, arranging notes, gathering information from those who could fill in the gaps for him.
He was the obvious man for the job. Writer, journalist, and editor, he had been schooled in the task of integrating written material and in working up connecting links and explanatory passages as they were needed. Again, not only did he stand near the head of the legal profession, so that he was fully equipped to juggle the problem of libel, the textbook citations, and the technicalities and philosophy of the law (essentials in dealing with any such trial), but he had an unparalleled position at the center of the Zenger turmoil.
No one in New York knew more than James Alexander about how and why Peter Zenger came to be tried before the Supreme Court of the Colony. How could it have been otherwise when theNew York Weekly Journalwas under fire, and Alexander was theJournal’s editor? He himself had approved, and perhaps written, the “libelous” issues on which the prosecution was based. He himself would have been in the dock as defendant instead of the printer if only the attorney general had been able to get him indicted.
Alexander had been a leader of the Popular party from the beginning of its struggle with Governor Cosby. He had conspired against the Governor, fought him in the Courts and through the press, and used every weapon to hand in an all-out effort to ruin him politically. There was hardly a dissident movement in New York with which Alexander was not allied as adviser or mentor. It was only natural thathe should have been one of Zenger’s lawyers, for he understood as few others could just what the administration attack amounted to, and how a counterattack should be developed. It is not difficult to imagine the intelligence and the alertness with which he noted every word that was spoken at the trial. He must have been the perfect spectator if ever there was one.
And all this does not exhaust the depths of his familiarity with the incident. Until his disbarment he had been one of the counsel for the defense, which made it his duty to draw up a brief in preparation for his plea. He fulfilled his duty so well that when he was summarily removed by order of Chief Justice Delancey he was able to hand over to Andrew Hamilton a whole plan of campaign, and Hamilton (brought in unprepared and at the last moment) relied on it substantially throughout the proceedings.
It takes nothing from Hamilton, whose performance remains one of the classical things in the history of American law, that Alexander gave him the lead which he followed with such stunning success—that is, the decision to base Zenger’s defense on the truth of theJournalarticles, and on that basis to ask the jury to bring in a verdict of “Not guilty.” Alexander already held that guiding thread in his hand months before Hamilton appeared on the scene. (Not that he invented the idea, but he saw that it was the gambit to play.)
Hamilton’s own record of the trial went into theBrief Narrative, as is indicated by this passage from one of the letters that the Philadelphia barrister wrote to his friend and colleague in New York:
I have at last sent you my draft of Mr. Zenger’s trial.... I have had no time to read it over but once since it was finished. I wrote it by half-sheets and copied it as fast as I wrote. Themeaning of all this is to beg you to alter and correct it agreeable to your own mind.[36]
I have at last sent you my draft of Mr. Zenger’s trial.... I have had no time to read it over but once since it was finished. I wrote it by half-sheets and copied it as fast as I wrote. Themeaning of all this is to beg you to alter and correct it agreeable to your own mind.[36]
Thus Alexander even edited the text submitted by the defense attorney, and the latter’s acceptance of the result shows how faithfully it reflected the spoken word. Alexander clearly has given us the events of August 4, 1735, almost to the life.
His account had an enormous success in his own time. Lawyers, journalists, and political philosophers felt the impact of the acquittal as something new, either hopeful or foreboding, and there sprang up a market for the text in both America and England. Other editions began to appear to meet the demand, several of them published in London as early as 1738. The eighteenth century, when the problems involved were still fighting issues, was the golden age of Zenger republication. One of these versions, that issued by J. Almon of London in 1765, is generally available today in the form of a reprint prepared by the Work Projects Administration and sponsored by the California State Library for its series of “Occasional Papers” (1940).
The nineteenth century saw two particularly useful editions in T. B. Howell’sState Trials(1816) and in Peleg W. Chandler’sAmerican Criminal Trials(1841), the first following Alexander almost word for word, the second modified and abridged. With the turn of the century Livingston Rutherfurd made available a literal reprint of theBrief Narrativein hisJohn Peter Zenger, His Press, His Trial and a Bibliography of Zenger Imprints(1904). Fifty years later Frank Luther Mott did the same for our generation inOldtime Comments on Journalism(1954).
The first edition of any text (putting aside the corrupt or otherwise unreliable) always has a presumption in its favor. This is how the author saw his own work; this is the formin which he cast his own thoughts; this is the union of his own logic with his own rhetoric. Nothing else can begin to approach the authority and authenticity of his imprimatur. Consequently it is mandatory for later editors to justify tampering with the text instead of simply reproducing it.
The justification for the version here presented of James Alexander’sA Brief Narrative of the Case and Tryal of John Peter Zenger, Printer of the New York Weekly Journalis that his text of 1736, however fine an achievement for his own time, is not quite so satisfactory after the lapse of two hundred years. Literary conventions have changed too much for so characteristic a piece of eighteenth-century writing to be allowed to remain as it is when modern standards of readability are in question. Moreover, in places it shows signs of haste, or possibly even of another writer at work. An instance is the opening passage, which falls far below Alexander’s best style, and may be by someone else, perhaps Zenger himself. Lastly, there is too much technical law for the lay reader. On all these counts theBrief Narrativeneeds overhauling for our purposes.
This does not imply any distortion: the bulk of Alexander’s text is here just as it came from Zenger’s press. Most of the pamphlet is still perfectly clear, and it would be pointless to change anything simply for the sake of change. More than that, it is preferable to keep to the original wherever possible in order to catch something of the eighteenth-century atmosphere.
Clarity is the touchstone. Nothing has been allowed to stand that might trouble readers who are not familiar with obsolete usages. The simplest revision is in the spelling, where I use “trial” instead of “tryal,” “jail” instead of “gaol,” “public” instead of “publick,” etc. More important is the change in punctuation. Like most publications of its time,theBrief Narrativeshows a plethora of commas, colons, and semicolons, a type of punctuation that tends to produce long, complicated, tedious sentences. There are too many capitals and italics, which today not only irritate the eye but also lose their force by doing too much duty. In certain places the grammar calls for the addition or omission of words.
A comparison of the following passages, the first two from the original, the second pair from my edition of the text, will show exactly what changes these considerations have led to:
As There was but one Printer in the Province ofNew-York, that printed a publick News Paper, I was in Hopes, if I undertook to publish another, I might make it worth my while; and I soon found my Hopes were not groundless: My first Paper was printed,Nov. 5th, 1733. and I continued printing and publishing of them, I thought to the Satisfaction of every Body, till theJanuaryfollowing: when the Chief Justice was pleased to animadvert upon the Doctrine of Libels, in a long Charge given in that Term to the Grand Jury, and afterwards on the thirdTuesdayofOctober, 1734. was again pleased to charge the Grand Jury in the following Words. “Gentlemen; I shall conclude....”Be it remembered, thatRichard Bradly, Esq: Attorney General of Our Sovereign Lord the King, for the Province ofNew-York, who for Our said Lord the King in this Part prosecutes, in his own proper Person comes here into the Court of our said Lord the King, and for our said Lord the King gives the Court here to understand and be informed, ThatJohn Peter Zenger, late of the City ofNew-York, Printer, (being a seditious Person; and a frequent Printer and Publisher of false News and seditious Libels, and wickedly and maliciously devising the Government of Our said Lord the King of this His Majesty’s Province ofNew-York, under the Administration of His ExcellencyWilliam Cosby, Esq; Captain Generaland Governour, in Chief of the said Province, to traduce, scandalize and vilify, and His Excellency the said Governour, and the Ministers and Officers of Our said Lord, the King of and for the said Province to bring into Suspicion and the ill Opinion of the Subjects of Our said Lord the King residing within the Province) the Twenty eighth Day ofJanuary, in the seventh Year of the Reign of Our Sovereign LordGeorgethe second, by the Grace of God ofGreat-Britain,FranceandIreland, King Defender of the Faith, &c. at the City ofNew-York, did falsly, seditiously and scandalouslyprint and publish, and cause to be printed and published, a certainfalse, malicious, seditious scandalousLibel, entitledThe New-York Weekly Journal, containing the freshest Advices, foreign and domestick;
As There was but one Printer in the Province ofNew-York, that printed a publick News Paper, I was in Hopes, if I undertook to publish another, I might make it worth my while; and I soon found my Hopes were not groundless: My first Paper was printed,Nov. 5th, 1733. and I continued printing and publishing of them, I thought to the Satisfaction of every Body, till theJanuaryfollowing: when the Chief Justice was pleased to animadvert upon the Doctrine of Libels, in a long Charge given in that Term to the Grand Jury, and afterwards on the thirdTuesdayofOctober, 1734. was again pleased to charge the Grand Jury in the following Words. “Gentlemen; I shall conclude....”
Be it remembered, thatRichard Bradly, Esq: Attorney General of Our Sovereign Lord the King, for the Province ofNew-York, who for Our said Lord the King in this Part prosecutes, in his own proper Person comes here into the Court of our said Lord the King, and for our said Lord the King gives the Court here to understand and be informed, ThatJohn Peter Zenger, late of the City ofNew-York, Printer, (being a seditious Person; and a frequent Printer and Publisher of false News and seditious Libels, and wickedly and maliciously devising the Government of Our said Lord the King of this His Majesty’s Province ofNew-York, under the Administration of His ExcellencyWilliam Cosby, Esq; Captain Generaland Governour, in Chief of the said Province, to traduce, scandalize and vilify, and His Excellency the said Governour, and the Ministers and Officers of Our said Lord, the King of and for the said Province to bring into Suspicion and the ill Opinion of the Subjects of Our said Lord the King residing within the Province) the Twenty eighth Day ofJanuary, in the seventh Year of the Reign of Our Sovereign LordGeorgethe second, by the Grace of God ofGreat-Britain,FranceandIreland, King Defender of the Faith, &c. at the City ofNew-York, did falsly, seditiously and scandalouslyprint and publish, and cause to be printed and published, a certainfalse, malicious, seditious scandalousLibel, entitledThe New-York Weekly Journal, containing the freshest Advices, foreign and domestick;
In the present edition, these passages read as follows:
As there was but one printer in the Province of New York who printed a public newspaper, I was in hopes that if I undertook to publish another I might make it worth my while. I soon found my hopes were not groundless. My first paper was printed on November 5, 1733; and I continued printing and publishing them, I thought to the satisfaction of everybody, till the January following, when the Chief Justice was pleased to animadvert upon the doctrine of libels in a long “charge” given in that term to the grand jury. Afterwards, on the third Tuesday of October, 1734, he was again pleased to charge the grand jury in the following words: “Gentlemen, I shall conclude....”Be it remembered that Richard Bradley, Attorney General of the king for the Province of New York, who prosecutes for the king in this part, in his own proper person comes here into the Court of the king, and for the king gives the Court here to understand and be informed:That John Peter Zenger, of the City of New York, printer (being a seditious person; and a frequent printer and publisher of false news and seditious libels, both wickedly andmaliciously devising the administration of His Excellency William Cosby, Captain General and Governor in Chief, to traduce, scandalize and vilify both His Excellency the Governor and the ministers and officers of the king, and to bring them into suspicion and the ill opinion of the subjects of the king residing within the Province), on the twenty-eighth day of January, in the seventh year of the reign of George the Second, at the City of New York did falsely, seditiously and scandalously print and publish, and cause to be printed and published, a certain false, malicious, seditious, scandalous libel entitledThe New York Weekly Journal.
As there was but one printer in the Province of New York who printed a public newspaper, I was in hopes that if I undertook to publish another I might make it worth my while. I soon found my hopes were not groundless. My first paper was printed on November 5, 1733; and I continued printing and publishing them, I thought to the satisfaction of everybody, till the January following, when the Chief Justice was pleased to animadvert upon the doctrine of libels in a long “charge” given in that term to the grand jury. Afterwards, on the third Tuesday of October, 1734, he was again pleased to charge the grand jury in the following words: “Gentlemen, I shall conclude....”
Be it remembered that Richard Bradley, Attorney General of the king for the Province of New York, who prosecutes for the king in this part, in his own proper person comes here into the Court of the king, and for the king gives the Court here to understand and be informed:
That John Peter Zenger, of the City of New York, printer (being a seditious person; and a frequent printer and publisher of false news and seditious libels, both wickedly andmaliciously devising the administration of His Excellency William Cosby, Captain General and Governor in Chief, to traduce, scandalize and vilify both His Excellency the Governor and the ministers and officers of the king, and to bring them into suspicion and the ill opinion of the subjects of the king residing within the Province), on the twenty-eighth day of January, in the seventh year of the reign of George the Second, at the City of New York did falsely, seditiously and scandalously print and publish, and cause to be printed and published, a certain false, malicious, seditious, scandalous libel entitledThe New York Weekly Journal.
The major departure from Alexander’s text remains to be mentioned, since it is not involved in these passages—namely, the excision of some parts and the summarizing of others. Summaries are used when a faster pace seems advisable, for example at the start, when the preliminary maneuverings of the Governor are described. The excisions concern mainly the technicalities of the law. The long quotations from dusty legal tomes, the appeal to long-past precedents, can be of little interest to any except those trained in the law, and so only those passages have been retained that are necessary to the intelligibility of the arguments. But that in itself means a solid core, enough to show the dialectic of the lawyers moved, how the prosecution set up positions, and how the defense knocked them over.
Four fifths of theBrief Narrativeare here—including all the passages-at-arms between Andrew Hamilton on the one side, and Bradley and Delancey on the other, and all of the defense attorney’s splendid peroration on liberty that clinched the acquittal for Peter Zenger.
NOTE: Editorial summaries are enclosed within brackets. Other changes are not indicated, and anyone interested in them should consult the original. In particular, blank lines do not necessarily stand for the deletion of material: they are there mainly for convenience in following the case step by step.
NOTE: Editorial summaries are enclosed within brackets. Other changes are not indicated, and anyone interested in them should consult the original. In particular, blank lines do not necessarily stand for the deletion of material: they are there mainly for convenience in following the case step by step.